By the Court. If the plaintiff be entitled to read the deposition
in this case, he is not entitled to read it by virtue of
the act of the legislature. The act is most clearly unconstitutional
and void. It is an attempt of the legislature to
make a judicial decision in a particular case; but the constitution
of this State, prohibits the legislature from the
exercise of any judicial powers. The act is also retrospective
in its operation, is rather in the nature of a legislative
sentence, order or decree, than of a law. Besides, if the
deposition was not legally taken in this case, it is a mere
voluntary affidavit. And, the person making such a voluntary
affidavit, does not subject himself to the pains and
penalties of perjury, for any false swearing in such affidavit;
it is not taken, therefore, under that security to which
the person, against whom it is to be read, is entitled; nor
can any ex pos facto law give that security. Suppose this
deposition to have been false, in some material fact, and
that Morse were not dead, but gone to some parts unknown,
and, by virtue of this act his deposition read, and
a verdict obtained against the defendant, and Morse
should return; could he be convicted of perjury, for
swearing falsely in giving the deposition? Certainly not.
Even if the legislature should have specially provided, that
the deponent should be liable to all the pains and penalties
of wilful and corrupt perjury, for false swearing; such ex
pos facto provision would have been void, as being against
the constitution of this State, the constitution of the United
States, and even against the laws of nature. The deposition,
therefore cannot be admitted on the authority of the
act of the legislature.

But, the Court on consideration are of opinion that the
deposition is legally taken. It seems to have been settled
that the person suing in such case may bring the action in
his own name only. In England, the writ may be brought
qui tam, and the declaration be in the name of the person
prosecuting only--and, that there is no necessity that the
writ or declaration should express the qui tam. The person
prosecuting may well be considered as the sole plaintiff.